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PENNSYLVANIA ASSOCIATION STATE MENTAL HOSPITAL PHYSICIANS v. COMMONWEALTH PENNSYLVANIA (02/03/87)

decided: February 3, 1987.

PENNSYLVANIA ASSOCIATION OF STATE MENTAL HOSPITAL PHYSICIANS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF CORRECTIONS AND GLEN R. JEFFES, COMMISSIONER, PENNSYLVANIA DEPARTMENT OF CORRECTIONS, RESPONDENTS



Original Jurisdiction in the case of Pennsylvania Association of State Mental Hospital Physicians v. Commonwealth of Pennsylvania, Pennsylvania Department of Corrections and Glen R. Jeffes, Commissioner, Pennsylvania Department of Corrections.

COUNSEL

Samuel L. Spear, with him, Leonard Spear and Margaret A. Browning, Spear, Wilderman, Sigmond, Borish, Endy and Silverstein, for petitioner.

Thomas B. York, Deputy Attorney General, with him, Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondents.

Judges Craig and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 103 Pa. Commw. Page 424]

The Pennsylvania Association of State Mental Hospital Physicians (association) filed a petition for review and request for preliminary and permanent injunctive relief against the Department of Corrections (department) to void a contract executed by the department and Correctional Medical Systems, Inc. (CMS) and to seek damages for the department's allegedly improper furlough of four of the association's members. This court denied the association's request for a temporary restraining order and, in a later proceeding, the request for a preliminary injunction. We now consider the association's petition and request for permanent injunctive relief and the department's preliminary objections.

The department formerly employed four of the association's members as staff physicians at the State Correctional Institution at Graterford. On July 2, 1986, department Commissioner Glen R. Jeffes notified the four physicians that, "because of the Institution's historical problem in recruiting and retaining medical staff," the Commonwealth had executed an agreement with CMS for that company to render comprehensive health care services at the Graterford facility. As a consequence, the department furloughed the physicians for lack of work, effective July 31, 1986.

The association's petition for review recites three counts: Count I, that the department lacked statutory authority to contract with CMS; Count II, that the department's contract with CMS "violates the letter and spirit of the State Civil Service Act"; and Count III, that the department's furlough of the physicians violates section 802 of the Civil Service Act*fn1 because the furloughs were not based on a legitimate lack of work.

[ 103 Pa. Commw. Page 425]

The department preliminarily objects to the association's claims on the grounds that: (1) the association failed to state a cause of action because the department is statutorily authorized to contract with CMS; (2) this court lacks jurisdiction because the association failed to exhaust its administrative remedies; and (3) the association failed to join CMS as an indispensable party to the suit. We will assess each of the association's claims against the department's objections.

Count I: Lack of Statutory Authority; Demurrer

Initially, we must determine if jurisdiction exists for this court to entertain the association's claim that the department lacked statutory authority to contract with CMS for health care for the Graterford facility. The department argues that, to the extent that the association seeks to enforce the terms of the collective bargaining agreement, it must first follow the grievance procedure outlined in it. Additionally, the department contends that, if the association is claiming an unfair labor practice, the case should go first to the Pennsylvania Labor Relations Board.

However, the association's claim does not fall within either of the two categories described by the department. The association is attacking a contract executed by the department and a third party provider. Specifically, the association seeks to have this court declare the department's contract with CMS unlawful. In Parker v. Pennsylvania Department of Public Welfare, 49 Pa. Commonwealth Ct. 619, 411 A.2d 897 (1980), we held that this court has jurisdiction over a petition for review for a declaratory judgment as to the validity of an "Agreement and Authorization to Pay Claim," involving the ...


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